Glacier Fish Co. v. Pritzker, No. 15-35103 (9th Cir. 2016)
Annotate this CaseGlacier challenges the fee imposed on it by the NMFS pursuant to the agency’s cost recovery program developed under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1853(a). The final regulations required members of a catcher-processor coop to pay a percentage of the revenue earned by each vessel as a fee to NMFS. The court concluded that, because the catcher-processor coop permit is a limited access privilege, and Glacier can reasonably be said to be a “holder” of that permit, NMFS had the authority to collect a fee from the individual members of the coop, including Glacier. Therefore, the district court did not err in granting summary judgment to NMFS on this issue. Because NMFS’s regulations include the Council’s definition of incremental costs as net costs with and without the trawl rationalization program, NMFS complied with section 1853a(e), and the court rejected Glacier’s argument to the contrary. Finally, the court concluded that NMFS’s calculation of the 2014 cost recovery fee of the catcher-processor sector was inconsistent with NMFS’s own regulations. Therefore, the court reversed the district court’s grant of summary judgment to the extent it upheld NMFS’s fee calculation and remanded to the agency to re-determine that fee in accordance with its regulations. Accordingly, the court affirmed in part, reversed in part, and remanded in part.
Court Description: Magnuson-Stevens Fishery Conservation and. Management Act The panel affirmed in part and reversed in part the district court’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in an action by the Glacier Fish Co. challenging the fee imposed on it pursuant to NMFS’s cost recovery program developed under the Magnuson- Stevens Fishery Conservation and Management Act for a fishery management plan. In December 2013, NMFS published a final rule and final regulations that required members of a catcher-processor coop to pay a percentage of the revenue earned by each vessel as a fee to NMFS. Glacier is a coop member, and challenged NMFS’s requirement that Glacier pay a fee of 1.1 percent of its 2014 revenue. GLACIER FISH CO. V. PRITZKER 3 The panel held that the agency had the authority to require Glacier to pay a cost recovery fee but that the agency’s calculation of the amount of the 2014 cost recovery fee was inconsistent with its own regulations. Addressing Glacier’s three claims, first, the panel held that NMFS had the authority to collect a fee from the individual members of the coop, including Glacier, because the catcher-processor coop permit was a limited access privilege, and Glacier could reasonably be said to be a “holder’ of that permit. Second, the panel held that NMFS applied the appropriate cost accounting methodology and complied with16 U.S.C. § 1853a(e). Third, the panel held that NMFS’s calculation of the 2014 cost recovery fee of the catcher-processor fee sector was inconsistent with NMFS’s own regulations, and reversed the summary judgment to the extent it upheld NMFS’s fee calculation. The panel remanded to the agency to redetermine that fee in accordance with its regulations. District Judge Watson concurred in part and concurred in the judgment. While he joined in the majority’s evaluation of the merits of Glacier’s three claims, Judge Watson would not have considered much of the issue of NMFS’s authorization to collect a cost recovery fee because Glacier waived the claim.
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